Justices’ Debate Turns to Privacy for Doctors

Wednesday

Apr 27, 2011 at 5:09 AM

An esoteric discussion about data mining by drug companies turned into a debate over the government’s role in regulating the marketplace of ideas.

ADAM LIPTAK

WASHINGTON — A somewhat esoteric Supreme Court case on Tuesday about data mining by drug companies turned into a debate over a fundamental First Amendment principle that has much engaged the justices lately: What role may the government play in regulating the marketplace of ideas?

In assessing the Vermont law at issue Tuesday (Sorrell v. IMS Health, No. 10-779), which bars some but not all uses of prescription drug data, several justices indicated that they viewed government efforts to alter the mix of available information as constitutionally problematic.

That principle animated last term’s decision in Citizens United, which struck down part of a federal law regulating speech about politics by corporations and unions. The tenor of Tuesday’s arguments suggested that a majority of the justices had similar concerns about the Vermont law, which regulates the use of information collected about doctors by records kept by pharmacies.

The case is not about patients’ privacy rights, as individual information about them is meant to be stripped from the data. Rather, the Vermont law restricts tailored efforts to market drugs to doctors aided by databases showing what medicines they have been prescribing.

The state law forbids the sale of prescription data to market drugs and bars drug companies from using the data to market drugs, unless the prescribing doctor consents. But other uses of the same data are allowed, including ones by law enforcement, insurance companies and journalists. And drug companies remain free to market their drugs in a more indiscriminate fashion, without knowing the prescribing habits of individual doctors.

Bridget C. Asay, an assistant state attorney general defending the law, tried to frame it as one meant to protect doctors’ privacy. But the argument gained little traction, and several justices noted that the law permitted uses that seemed to invade doctors’ privacy as much as the forbidden ones, and in any event doctors remain free to decline to meet with marketers.

Some of the justices also seemed concerned about what the law meant to achieve, as reflected in legislative findings justifying the law.

There is, the state Legislature said, a “massive imbalance in information presented to doctors” and “the marketplace for ideas on medicine safety and effectiveness is frequently one-sided.” The point of the law, several justices suggested, was therefore to protect doctors from hearing from drug marketers that might suggest more expensive drugs even as the state pushed cheaper generic drugs.

“You want to lower your health care costs, not by direct regulation, but by restricting the flow of information to the doctors,” Chief Justice John G. Roberts Jr. told Ms. Asay. “To use a pejorative word,” he went on, the state is “censoring what they can hear to make sure they don’t have full information.”

The chief justice’s two most senior colleagues, Justices Antonin Scalia and Anthony M. Kennedy, forcefully made similar points. The three justices sit at the center of the Supreme Court bench and at times they seemed a juggernaut bearing down on Ms. Asay.

Other members of the court were also skeptical about the way Vermont had chosen to regulate the distribution of prescription data.

Justice Ruth Bader Ginsburg said the state “is interested in promoting the sale of generic drugs and correspondingly to reduce the sale of brand-name drugs.” But she said that goal ran up against a basic First Amendment problem.

“You can’t lower the decibel level of one speaker,” she said, “so that another speaker, in this case the generics, can be heard better.”

Thomas C. Goldstein, a lawyer for several data mining companies challenging the law, said that sort of government manipulation of information is impermissible.

“The way the First Amendment works in the marketplace of ideas that so upsets Vermont is that both sides get to tell their story,” he said. “The thing that is supposed to be biased here is that the drug companies have too much money. That is not a basis for restricting speech.”

New Hampshire and Maine have laws similar to the one in Vermont, and those have been upheld by the federal appeals court in Boston. The Vermont law at issue in Tuesday’s case was struck down last year by a divided panel of the federal appeals court in New York.

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